The Issue The issue for disposition is whether Ms. Baker knowingly and intentionally provided false and misleading information to her supervisors relating to her physical ability to return to work, and whether she thereby committed the violations of Chapter 231, F.S. and Rule 6B-1.006, F.A.C., alleged in the Administrative Complaint.
Findings Of Fact The following stipulated material facts are adopted from the parties' prehearing statement filed on March 18, 1988: The Respondent, Janie Baker, was employed as a continuing contract teacher with the Orange County School Board. The Respondent was first employed as a teacher by the Orange County School Board in August, 1965. The Respondent was suspended from her employment as a teacher on continuing contract with the Orange County school in November, 1984, and subsequently dismissed. Respondent was employed at the Gateway School at the time of her suspension Gateway is a school designed and utilized specifically to meet the educational needs of emotionally and socially handicapped (EH), specific learning disability (SLD) and severely emotionally disabled (SED) students. Its students range from four years of age through the sixth grade. EH students are educated at Gateway because they are unable to successfully attend class in regular schools with non- handicapped students. EH students have social and behavioral problems and occasionally may strike one another or their teachers. EH students are more prone to "act out" their emotions physically than normal children. The Respondent taught a class of approximately 10 emotionally handicapped students during the school year 1984-1985. During the school year 1983-84, the Respondent instructed specific learning disability children. On September 22, 1983, while employed at Gateway, the Respondent injured her back while catching a falling television set. Due to this injury, Respondent was on workmen's compensation leave from November 15, 1983 through the end of the 1983-84 school year. Dr. Munson, the Respondent's doctor, stated in a letter of August 21, 1984 that Respondent could return to school during the 1984-85 school year, but advised school officials of the need for Respondent to have a limited amount of physical activity in her work. Dr. Munson noted in his records that Respondent complained of her inability to return to work with mentally handicapped students because of the physical efforts involved. On August 24, 1984, during the pre- planning period for the 1984-85 school year, Dr. Louise Wicks, principal of Gateway School, and Velma Venrick, Senior Administrator for Employee Relations, met with the Respondent for the purpose of reviewing her physical condition and accommodations that the school would make to reduce the likelihood of Respondent suffering re-injury. Subsequent to the pre-planning meeting, Dr. Wicks drafted a memo on August 27, 1984 setting forth certain procedures and limitations to be utilized by Respondent while teaching her class. The limitations included Respondent not moving furniture or heavy classroom equipment, not handling students who were out of control and not doing excess lifting of heavy items. The Respondent was promised a full-time aide and instructed to arrange with the office for assistance in the event the aide was unavailable. When the 1984-85 school year commenced, a permanent substitute teacher was assigned to Respondent's classroom for the entire day until the permanent teacher assistant was hired and placed in the classroom. On October 3, 1984, Respondent sustained an injury in the classroom when pushed by a student. The Respondent's teaching aide was working at the blackboard with his back to the students at the time of the incident. He turned around and saw Respondent lying on the floor with the student on top of her, hitting her in the stomach and all over her body. The teaching assistant immediately went over and pulled the student away from Respondent. The fire department was called and Respondent was taken to the hospital for treatment. The hospital examined Ms. Baker and told her to go back to her orthopedic doctor. She returned to Dr. Munson's office and was examined by him. She complained of soreness but the x-rays taken at Winter Park Memorial Hospital revealed no fractures or dislocations. Dr. Munson felt there was a contusion and that Ms. Baker should not return to work. He suggested rest, with ice and massage and told her to return to him as needed. She was given a note that said she "... may return to work if she feels like it." (Petitioner's Exhibit #8). Ms. Baker did not return to work until November 2, 1984. Between October 3, 1988, and that date, she visited Dr. Munson's office several times. On October 19, 1988, Dr. Munson felt that she could return to work and communicated that fact to Ms. Baker. Dr. Munson saw no orthopedic contraindications to her returning to work in the light duty fashion that was described to him by the School Board. He had been assured in letters from the School Board that she would not be exposed to physical activity. Dr. Munson was aware of a continuing conflict between Ms. Baker and her employers even before the October 3rd classroom incident. Throughout his treatment of Ms. Baker, she complained of what she felt was a threat from violent students in the classroom and she expressed fear of reinjury. On the other hand, the letters and conversations with School Board staff reassured him that she had help and was restricted from lifting or rigorous activity. On Saturday, October 20, 1984, Ms. Baker received a letter from Dr. James Scaggs, Superintendent for Administrative Services and Employee Relations, acknowledging that she had not returned to work and requiring her to immediately obtain a statement from Dr. Munson indicating a specific date on which she could return to work, or stating that she was disabled and unable to return. On Monday, October 22, 1984, Ms. Baker visited Dr. Munson's office to get the work statement. Again, Dr. Munson informed her that she could return to work under the conditions described by the School Board. At that point Dr. Munson felt there was a conflict between the demands of her job, as Ms. Baker described them, and how the School Board personnel presented them. He felt that he needed to take a position as an orthopedist and that position was that she could return to work. Ms. Baker left Dr. Munson's office on October 22nd still upset because she thought she was exposed to injury. Dr. Munson dictated his opinion in an office note dated October 22nd. He discussed the opinion with Dr. Scaggs and sent him a copy of the note the following day. On October 23, 1984, Dr. Wicks, Gateway School Principal, called Ms. Baker and told her to come to work or bring a doctor's statement. Dr. Wicks also informed Ms. Baker that her leave of absence had not yet been approved. Ms. Baker responded that she was still ill and would bring Dr. Munson's statement. Ms. Baker then returned to Dr. Munson's office. Because she did not have an appointment and he was busy with patients, she was not able to get a note. After her unsuccessful attempt to see Dr. Munson and persuade him to change his opinion, Ms. Baker took the prior October 3rd note to the Gateway School office on October 23rd. This was the same note that said she could return to work if she felt like it. As she was leaving the office Dr. Wicks saw her and asked when she would be coming back. She replied that she did not have the slightest idea, that people were telling her doctor she could work and she would need to get that straightened out. By this time, Ms. Baker obviously knew the October 3rd note no longer reflected Dr. Munson's opinion. She made no effort to conceal the date on the note and was aware that Dr. Munson a had been speaking and corresponding with School Board officials. Her retort to Dr. Wicks reflected that awareness. Her admittedly deliberate action in leaving the outdated note was a provocative and confrontational expression of her disagreement with her employers; it was not an attempt to conceal the truth. In a telephone conversation with Dr. Scaggs on November 1st Ms. Baker readily admitted knowing that the note did not reflect Dr. Munson's current opinion, but she explained that she left the note because she disagreed that she could return to work. However sincere her belief, however correct her insistence that her duties were not the "light duties" described to Dr. Munson, Ms. Baker's lack of professionalism and disingenuousness is inexcusable. Her conduct seriously reduced her effectiveness as an employee of the School Board. Mrs. Baker returned to work as directed by Dr. Scaggs, on November 2, 1984. On November 5, 1984 she was suspended from her position and was later charged with several violations, based in part on the School Board's assertion that she intentionally and deliberately submitted false information on her physical ability to return to work. After a Section 120.57(1) F.S. hearing, Hearing Officer W. Matthew Stevenson found that Ms. Baker intentionally submitted a misleading medical document to Dr. Wicks and concluded that this constituted failure to exercise appropriate professional judgement and integrity and a failure to maintain honesty in professional dealings. He recommended continued suspension until commencement of the 1987-88 school year. The School Board in its Final Order filed on June 26, 1986, adopted most of the recommended findings and conclusions, but increased the penalty to termination. Ms. Baker currently holds State of Florida Teacher's Certificate #169492, covering the areas of elementary education, mental retardation, emotionally disturbed, specific learning disability, administrative supervision and junior college. She has taught in the State of Florida continually since 1965, except for brief leaves of absence to further her own education. She has been reprimanded in writing by her principal, Louise Wicks, three times for inappropriate and unprofessional behavior, on February 8, 1983, September 17, 1983, and October 15, 1984. Dr. Scaggs and Dr. Wicks were aware of a conflict between Ms. Baker and her principal. Prior to working together at Gateway School the two women had been sorority sisters and friends. Their families visited socially. At some point, the relationship deteriorated. Dr. Wicks attributes this to her appointment to an administrative position that Ms. Baker wanted. Despite the conflict, there is insufficient evidence to establish that Ms. Baker's discipline was motivated by Dr. Wick's desire to remove her from Gateway.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Janie E. Baker, Respondent, be found guilty of violations described in Sections 231.28(1)(f) and (h), F.S. and not guilty of violations described in Section 231.28(1)(c), F.S. and Rule 6B-1.006(5)(a), F.A.C., and that her teaching certificate be suspended for one year. DONE and RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1988.
The Issue Whether Respondent School Board of Alachua County (School Board) engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright, an African-American woman of Jamaican descent, worked as a teacher in the Alachua County School District (School District) for several years, the last two positions being at Glen Springs Elementary School (Glen Springs), from 2016-2018, and Metcalfe Elementary School (Metcalfe), for the 2018-2019 school year. Ms. Wright possesses a bachelor’s of arts in education and a master’s of arts in education, both from the University of Florida. In 2017, she completed an educational leadership program at the University of Florida. Thereafter, in October 2017, she entered the School District’s administrative pool, and she informed Glen Springs Principal Armstrong of her intentions to seek an administrative position within the School District. The School District did not hire or promote Ms. Wright to an administrative position during the 2017-2018 school year. Mr. Purvis, the School District’s Assistant Superintendent for Human Resources, testified that it is normal for a person who enters the administrative pool for consideration for an administration position to wait some time before receiving an appointment to such a position. Mr. Purvis testified that is not common for an administrative pool applicant to be appointed assistant principal or principal within three months of entering the administrative pool. In December 2017, Ms. Wright approached Principal Armstrong and expressed that she was experiencing what she believed was harassment, including an attempted break-in at her apartment, people tracking or following her, someone tampering with her car’s gas tank, someone hacking her cell phone, and an instance in which a fire truck, which she believed may have been operated by another school principal’s husband, allegedly attempted to block her car from driving to a School District leadership meeting. Ms. Wright requested leave to deal with these issues, which Principal Armstrong granted. On February 9, 2018, while Ms. Wright served as the Behavior Resource Teacher at Glen Springs, she was involved in an incident in the cafeteria, where some students were being served breakfast. Ms. Wright testified that she noticed one student was “staggering” and then fell down. Then, she began to feel “sick” and “woozy,” and noticed three other students who “appeared to look dizzy and sick too.” She also made a statement that she observed other teachers who were falling in slow motion. She then ordered a lockdown of the cafeteria, and ordered all students to their classrooms. Ms. Wright then went to the front office, and Principal Armstrong called the school nurse and district office, which sent a school resource officer from a neighboring school, and Ms. Finley (the School Board’s Supervisor of Human Resources), to Glen Springs. Ms. Wright refused services from the school nurse, although she admitted that she did not feel well. When Ms. Finley and the school resource officer arrived, she agreed to be transported by Ms. Finley to the emergency room at North Florida Regional Medical Center (NFRMC). Ms. Finley drove Ms. Wright to NFRMC, and she and the school resource officer, who followed in a separate vehicle, waited until Ms. Wright was admitted to the emergency room. Ms. Finley testified that she and the school resource officer gave Ms. Wright their cell phone numbers, and told her to call when she was released. Ms. Wright stated that NFRMC discharged her, with little treatment, that same day (a Friday). However, over that weekend, she experienced other issues and requested to be returned to NFRMC, and was transported after receiving EMS services. Ms. Wright’s recounting of this second visit to NFRMC offers a harrowing description of a ten-day hospital stay that included an unusual hospital room with a bed on the floor, visits from a judge, and nurses and doctors (one of whom she believed was the parent of a Glen Springs kindergartner) injecting her with substances that caused partial paralysis. After her second discharge from NFRMC, and after receiving clearance from her treating physician, on March 12, 2018, the School District decided to not return Ms. Wright to her previous position at Glen Springs, but rather placed her in a temporary position at the Student Services Department at the Manning Center, analyzing charter school data and serving as a liaison for charter school families, for the remainder of the school year. Ms. Wright received the same salary and benefits as her teaching position at Glen Springs. Ms. Wright requested that Ms. Finley, an African American woman, facilitate her placement in a new teaching position for the next school year. Ms. Finley offered Ms. Wright a position at Lake Forest Elementary School as a Title I Intervention teacher, which she declined. Thereafter, Ms. Finley offered Ms. Wright a position at Metcalfe as a Title I Intervention teacher for the 2018-2019 school year, which she accepted. During her employment at Metcalfe, Principal Jacquette Rolle asked Ms. Wright to utilize a certain curriculum for instruction and perform assessments in order to track student performance, as required under School Board and state guidelines. When Ms. Wright refused to do so, Principal Rolle issued a 24-hour notice for a meeting to be held at Metcalfe with Principal Rolle and other School District officials, on October 5, 2019. Ms. Wright testified that she had another subsequent meeting with Principal Rolle, in which Principal Rolle “yelled in my face, not in a low tone, at a high tone.” On April 9, 2019, while working at Metcalfe, Ms. Wright contacted the FBI to complain that someone had again hacked her cell phone. The FBI referred her to the Gainesville Police Department, which then contacted Metcalfe’s school resource officer, Officer Davis, to respond. Officer Davis testified that, after the Gainesville Police Department dispatch center contacted him, he met with Ms. Wright. Officer Davis testified that she relayed concerns about events that happened at Glen Springs, that different school principals were following her, that people were in her attic, and that her car had been tampered with at a car dealership. He stated that “[s]he was like continually talking. She would talk about one subject and then all of a sudden she would change to another subject that was unrelated to what she was actually talking about at the time.” Officer Davis testified that, as a police officer, he has received training with respect to identifying individuals experiencing mental health crises, and in de-escalating such situations. Although Officer Davis did not believe that Ms. Wright met the criteria for consideration for a Baker Act, he reported that she was experiencing mental health issues that needed to be evaluated. Officer Davis prepared a report, dated April 9, 2019, that he shared with Principal Rolle and that was also provided to the School District. Principal Rolle also provided a letter, dated April 9, 2019, that summarized her concerns with Ms. Wright, to the School District. Mr. Purvis, the School Board’s Assistant Superintendent for Human Resources, received Officer Davis’s report, as well as Principal Rolle’s letter, and decided that Ms. Wright must undergo a “Fitness for Duty” evaluation, pursuant to School District Policy 3161. This policy states: If the Superintendent believes an instructional staff member is unable to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations, the staff member will be offered the opportunity for a meeting to discuss these issues. The Superintendent may require an instructional staff member to submit to an appropriate examination by a health care provider designated by the Board to determine whether or not the staff member is able to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations. The Board shall pay any uninsured fees for such examinations. The staff member will be required to execute a release that complies with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) in order to allow the report of the medical examination to be released to the Superintendent and to allow the Superintendent or his/her designee to speak to the health care provider who conducted the medical examination to get clarification. Refusal to submit to an appropriate examination or to execute the HIPAA release will be grounds for disciplinary action in accordance with the terms of the applicable collective bargaining agreement. As required by Federal law and regulation and Board Policy 3122.02, Nondiscrimination Based on Genetic Information of the Employee, the Superintendent shall direct the provider that is designated by the Board to conduct the examination, not to provide any genetic information in the report of the medical examination. Pursuant to State law and in accordance with the Americans with Disabilities Act, as amended, the results of any such examination shall be treated as a confidential medical record and will be exempt from release, except as provided by law. As required by Federal law, if the District inadvertently receives genetic information about an individual who is required to submit to an appropriate examination from a medical provider it shall be treated as a confidential medical record. Upon the recommendation of the Superintendent and approval of the Board, an instructional staff member may be placed on a leave of absence related to fitness for duty. Such leave shall be without pay; however, the employee may use accrued leave, if available. Furthermore, the Superintendent may recommend the instructional staff member’s dismissal based upon the results of the medical examination. The instructional staff member is entitled to a hearing as provided for in Florida law or the terms of the applicable collective bargaining agreement. Ms. Wright contended at the final hearing that she never met with the School District Superintendent, who, under this policy, is the individual responsible for requiring a “fitness for duty” evaluation. Mr. Purvis testified that it is the common practice of the School District for the designee of the Superintendent, such as the Assistant Superintendent for Human Resources, to require a “fitness for duty” evaluation. Mr. Purvis, Mr. Brooks (the School District’s Supervisor of Human Resources), and Ms. Wright met and discussed this policy and the “fitness for duty” evaluation. On April 10, 2019, the School District placed Ms. Wright on paid administrative leave pending the outcome of a “fitness for duty” evaluation. Several doctors examined Ms. Wright and these doctors referred her to a licensed psychologist, who conducted an evaluation on May 2, 2019; the psychologist concluded that Ms. Wright was not fit to return to her duties as an elementary school teacher. On June 5, 2019, Mr. Purvis, Mr. Brooks, Ms. Wright, and Carmen Ward (the teacher union’s president), had a meeting in which Mr. Purvis and Mr. Brooks shared the results of the “fitness for duty” evaluation. Mr. Purvis explained to Ms. Wright that, based on the psychologist’s evaluation, she was deemed to be unfit for duty, and would be placed on a leave of absence for the 2019-2020 school year. At a September 17, 2019, meeting, the School Board approved the placement of Ms. Wright on unpaid leave. Mr. Purvis afforded Ms. Wright the opportunity to use her accrued paid leave during this unpaid leave time period, and gave her a deadline of June 27, 2019, to notify the School District’s human resources department of her decision. Ms. Wright did not meet that deadline, but later, on January 6, 2020, requested some paid leave, which Mr. Purvis granted. Ms. Finley and Mr. Purvis credibly testified that the School District would welcome Ms. Wright back to employment with the School District, if she would receive appropriate treatment and clearance from a medical professional that would indicate she met the “fitness for duty” requirement in School District Policy 3161. After more than a year, Ms. Wright has failed to make any attempt to do so. Ms. Wright presented no persuasive evidence that the School Board’s decision concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race or national origin-based discriminatory animus. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race or national origin discrimination. Ms. Wright presented no persuasive evidence that the School Board retaliated against her for participating in a statutorily-protected activity. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Marshalee M. Wright’s Petition for Relief. DONE AND ENTERED this 14th day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Karen Clarke School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 Marshalee M. Wright Post Office Box 141981 Gainesville, Florida 32614 (eServed) Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2006.
The Issue The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Dawn McIntyre, from her employment as a teacher for three days without pay on charges contained in the July 11,1990, letter from the School Superintendent, Scott N. Rose. 1/ The letter charges: (1) that, on one occasion during the 1987-88 school year, the Respondent pushed a teacher aide; (2) that on May 9, 1990, the Respondent struck another teacher aide with a lamp; and (3) that the Respondent also handled two students in a rough, punitive manner during May and June, 1990. The charging letter asserts that the Respondent's alleged conduct constitutes misconduct in office.
Findings Of Fact The Respondent, Dawn McIntyre, has been a teacher at Safety Harbor Elementary School since the 1984-85 school year. Until this year, she taught pre-kindergarten emotionally handicapped children. For the 1990-91 school year, she accepted a smaller class of children with varying exceptionalities. She has an annual professional service contract, not a continuing contract. She is certified to teach early childhood, mental retardation and special learning disabilies. During the 1987-88 school year, the Respondent became involved in a confrontation with an aide at school. The seeds of this confrontation were sown when the aide and the teacher with whom she worked presented flowers to the school principal in appreciation for the efforts of the principal in saving the aide's job, which was in jeopardy of being eliminated for budgetary reasons. Shortly afterwards, in conversation in the teacher's lounge, the Respondent labeled the aide as a "[expletive deleted] brown-nose." This comment was reported to the aide by a participant in the conversation, and the aide was upset by it. She decided to confront the Respondent and explain the circumstances to demonstrate that the label was unfair. When she confronted the Respondent, the Respondent did not give her an opportunity to explain but rather pushed the aide on the shoulder with the palm of her hand and rudely insisted that the label fit. In January, 1990, the Respondent began working with a new aide. Although the new aide was unfamiliar with the work and needed some on-the-job training, the Respondent worked reasonably well with the aide until, in late April or early May, the aide volunteered to help another teacher who did not have an aide and needed assistance. The Respondent objected, taking the position that the Respondent needed all of the aide's available time to help in the Respondent's class. The Respondent told the aide that the aide's volunteering for another teacher would have to be put on her evaluation as an adverse comment. From that point forward, the Respondent began to treat the aide more and more poorly, and the Respondent's working relationship with the aide quickly deteriorated to the point that the aide felt compelled to seek the advice of her union representative on how to handle the situation. While the aide's handling of the situation may have contributed marginally to the deterioration of the working relationship between the two, the breakdown would not have happened without the Respondent's inappropriate behavior. On or about May 9, 1990, the Respondent instructed the aide to take only half of the children's hour rest period for lunch and use the rest to do paperwork in the classroom. After her lunch, the aide began to arrange a place to do the paperwork. The Respondent objected to the way the aide set a desk lamp on the table the aide was going to work at, thinking it threw too much light on where some of the children were sleeping, and she told the aide to move the lamp. When the aide did not move fast enough for the Respondent's liking, the Respondent rushed over to the table in disgust and snatched the lamp off the table before the aide could move it. In the process, she shouldered and elbowed the aide out of the way, knocking her temporarily off balance and accidentally grazing the aide's elbow with the lamp. Greatly upset by the way in which the Respondent handled the situation, together with the cumulative effect of the Respondent's prior inappropriate behavior, the aide immediately left the classroom without saying anything to the Respondent and reported the incident to the administration, in accordance with the advice of her union representative. The aide refused to continue to work with the Respondent and was reassigned. Two of the three other available aides also refused to work with the Respondent. One was the aide whom the Respondent had pushed and called a "[expletive deleted] brown-nose," and she refused to work with the Respondent partly because of the pushing incident. The other had not been involved personally in any unpleasant confrontations with the Respondent but was uncomfortable working with the Respondent in light of the incidents involving others that had been related to her. The third aide was only part-time and was too new to be thrust into the gap, in the opinion of the school principal. The principal had to go to the aides' union to force one of the other aides to work with the Respondent for the rest of the school year. As it turned out, the aide forced to work with the Respondent used sick leave so as to work with the Respondent as little as possible, and aides had to be put in the classroom on a rotating basis. On or about May 10, 1990, while in the process of escorting her class from the lunchroom back to the classroom, the Respondent walked up to one of her more difficult pupils, who had just spent most of the lunch period in "time- out," grasped him around the chin, with her thumb on one cheek and her fingers on the other cheek, applying more pressure than necessary to merely get his attention, and spoke to him sternly. This was done in the presence of the other children in the class and within sight of other children and adults in the lunchroom. On or about June 5, 1990, while again in the lunchroom, the Respondent walked up to another pupil from her class, who was sitting at the "time-out table," and reprimanded him sternly for untruthfully having told her that he had eaten his lunch. As she reprimanded the pupil, she squeezed his ear between her fingers and twisted it as part of the discipline. This, too, was done within sight of the children and adults in the lunchroom. Although perhaps technically corporal punishment in violation of School Board policy, the facts described in Findings 6 and 7, above, can be described as minor, or even marginal, violations. Neither child was injured, and neither complained to any adult that the Respondent had hurt them. (The child involved in the June 5th incident said that his ear hurt a little, but that was only when directly asked by one of the adults who witnessed the incident.) The "punishment" was so minor as to leave question whether it was punishment or just a case of overdoing an effort to get and keep the children's attention. By the time of the final hearing, all of the adult witnesses to these incidents were feuding with the Respondent in some form or fashion, and their testimony describing the incidents could have been slanted by the animosity between them and the Respondent. The Respondent has been and continues to be an effective teacher of pre-kindergarten children with learning disabilities. However, as reflected in the preceding Findings, she unfortunately has been susceptible to improper and unprofessional behavior which has hampered her working relationships with a significant number of her teaching colleagues and has created difficulties for the administration of the school. This has reduced her effectiveness as a teacher. The parties stipulated on the record of the final hearing that, if the charges are proven, a three-day suspension would be the appropriate discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order finding the Respondent guilty of misconduct in office and suspending her for three days without pay. RECOMMENDED this 17th day of December, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1990.
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1994.
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice against Petitioner based on race or otherwise violated Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, who is Caucasian, was employed by the Gadsden County School Board as a teacher in 1972. Since that time, other than an absence of three years, she taught in the Gadsden County School system for 29 years. Petitioner graduated from Florida State University (FSU) in 1971 with a bachelor of science degree in elementary and early childhood education. In the early 1980’s she obtained a master of science degree from FSU in reading-K-12 and language arts. She also had continuous in-service training over the 29 years she taught in Gadsden County. Petitioner has certifications to teach in English and language arts and has received recognition as a teacher from the National Board. Such National Board recognition signifies that Ms. Gates is considered an “outstanding” teacher in her area of specialization. Additionally, at the time of her recognition by the National Board, Ms. Gates was one of only 1500 teachers nationwide to receive this honor. Petitioner taught sixth grade with the majority of her time spent as a reading instructor working with at-risk children in Gadsden County. Petitioner was the reading instructor for both the Quincy Middle School until it closed and then for the Carter- Parramore Middle School. She continued in that position until Carter-Parramore closed and the school was moved to Shanks Middle School. While at Carter-Parramone, Petitioner began working with Edna Hussein-Forehand, a fellow Gadsden County School Board employee, doing Saturday tutoring/mentoring for children who needed extra support and help in reading. The Saturday program provided one-on-one instruction for at-risk children and eventually became known as the Help One Student To Succeed (HOSTS) program. In fact, Petitioner helped bring HOSTS to the Gadsden County School system. The HOSTS program was a prescribed instructional reading and language arts program that paired students with parents in order to promote reading through mentoring. It was held during the school day. Data collection and compilation of the program’s impact were required. In 1998 or 1999, Petitioner became the site facilitator for the HOSTS program at her school. In that capacity, she worked with at-risk children, including children who were scoring below average on standardized tests. She provided lesson plans and help to the volunteers in the program. More than that, Petitioner was instrumental in the program’s success and helped in the program’s receiving a National Exemplary Status award. The award was based on the success of the program in achieving positive academic and attitudinal results and in reducing the number of disciplinary referrals for the children who participated in the HOSTS program. Clearly, Ms. Gates had been involved in disciplinary decisions and in maintaining discipline in the classroom for some 29 years. She was also involved in disciplinary matters in the HOSTS program and in the Saturday mentoring program. After her success in the HOSTS program and prior to September 2003, Ms. Gates, along with a handful of other employees of Respondent, spearheaded the effort to bring the 21st Century Grant program to the Gadsden County School system. The Grant program was a partnership between the Gadsden County School Board and another community entity. The program was offered after school, beginning each school day around 3:00 to 3:15 p.m. It served at-risk children similar to the children Ms. Gates had been teaching and helping throughout her career. Given her teaching career and her voluntary efforts to help children succeed, Ms. Gates clearly believed in the Grant program and in helping a difficult population of children to succeed. In 2003, The Board advertised for five part-time Site Coordinator positions for the 21st Century Grant program. The positions were located at select schools in Gadsden County, including Shanks where Petitioner taught. The advertised qualifications were: Bachelor of Science degree or higher with a Masters’ degree preferred. Supervisory skills. Knowledge of the Gadsden County School District’s operations and procedures. Ability to work with children, adults, community members and parents. Essential Job Responsibilities listed in the advertisement were: Organize and Supervise the decision- making process. Provide clear direction and support to teachers and staff. Make clear job responsibilities and roles for all staff. Supervise care and maintenance of community center schools, equipment and property. Coordinate center schedule. Assist Program Director in periodic reviews of staff performance. Monitor collection and maintenance of student records and progress. Review program performance through on- going assessments and provide feedback to Program Director. Coordinate facilities and supervise extra-curricular activities. Facilitate communication among staff, parents, students, and community. Investigate and document all related incidents. Assist Program Director in on-going assessment to ensure quality implementation and success in activities that 1) improve students’ mastery of academic skills . . . through individualized assistance, 2) reduce juvenile risk-taking behaviors and promote healthy lifestyles through quality, fun after school and summer programs, and 3) strengthen families through increased parental participation in their child’s academic and social success and through extended learning programs addressing adult needs. Special projects . . . . The posted Vacancy Announcement, as well as the application for these positions, also required three references. However, most of the applicants were district employees who had references on file with the Board. Such filed references were accepted by Respondent as meeting the references required by the posted Notice of Vacancy and the application. Therefore, failure to submit references with the application did not disqualify the applicant. There was no evidence that acceptance of already-filed references in this application process was unreasonable or a pre-text to promote job applicants who did not submit references with their applications. Indeed, several applicants did not submit such references. Van Riggins, a former employee of Respondent, was the Director of the 21st Century Grant program. Mr. Riggins is African-American. In September 2003, Ms. Gates applied for the Site Coordinator position for the 21st Century Grant program located at Shanks, where she knew the children the program would serve. At the time of her application, she had been working with the type of children served by the Grant program for about 26 years. Additionally, the program would overlap with the reading program Ms. Gates taught on Saturdays. She submitted the three required reference forms with her application. Each of her letters of reference shows that Petitioner was considered by her supervisors and peers as “excellent” or “good” in her performance with Respondent. Unquestionably, Petitioner met the qualifications for this position. In fact, Petitioner had extensive experience in every category of the essential job responsibilities for this position and was already performing similar duties in the various positions she held at the time of her application. The interview panel for the site coordinator positions consisted of Vann Riggins; Tammy McGriff Farlin, African- American and then Coordinator of the HOSTS program; Maurene Daughan, Caucasian, then Grant Coordinator for the Board; and Ann Taylor, Caucasian. In addition to Petitioner, other applicants for the five positions were Carla Galvin, African-American; Debby Thompson, Caucasian; Doris Jean Black, race unknown; Rayford E. Blitch, Caucasian; Cedric Fabian Chandler, African-American; Irene Ford, African-American; Michelle Denise Taylor, African- American; and Marshall Lewis Williams, African-American. Debby Thompson limited her application to the position available at Chattahoochee Elementary School. Ms. Gates and Carla Galvin limited their applications to Shanks. Irene Ford preferred the position at Shanks, but did not limit her application to a specific school. Doris Black limited her application to Shanks, Chattahoochee Elementary, East Gadsden Elementary and a school in Greensboro. Cedric Chandler limited his application to Stewart Street Elementary School. Marshall Williams limited his application to Havanna Middle School. The other applicants did not limit their applications to a position at a specific school. Thus, the applicants competing for the Shanks position were Ms. Gates; Carla Galvin, the successful applicant; Doris Black; Rayford Blitch; Irene Ford; and Michelle Taylor. Carla Galvin had a bachelor’s degree in education. She did not have a master’s degree. She held a Florida teaching certificate in middle grade English. She had taught school since 1988 and had about 15 years’ teaching experience. She occasionally volunteered for the Saturday reading program. The evidence did not show that Ms. Galvin often helped at the Saturday program. Nor did the evidence show that Ms. Galvin had the extensive experience of Petitioner. As a teacher, she worked with some at-risk children. Ms. Galvin was also nominated for District Teacher of the Year and was one of the finalists for that award. Ms. Galvin was qualified for the position of Site Coordinator. Doris Black held a Florida teaching certificate in elementary education and varying exceptionalities. She was an exceptional student education (ESE) teacher at Shanks and had been working with ESE and at-risk children for over 20 years. The evidence did not show what college degree Ms. Black had obtained. She was qualified for the position of Site Coordinator. However, her qualifications are not at issue here. Rayford Blitch had an impressive resume since, during his 30-year career, he had been a guidance counselor, school psychologist, and school principal in high school and adult education in Gadsden County. He had extensive administrative experience. Mr. Blitch held a teaching certificate in administration, adult education, guidance counseling, school principal, school psychologist and school social work. He held a bachelor’s degree in criminology, special education and administration. He was experienced in testing and documentation of programs. However, he had retired in 2001 and the committee members were concerned about his ability to re-integrate into the school system and his general commitment to the program. The committee’s concerns were vague, but did form a reasonable basis for not recommending Mr. Blitch for the position of Site Coordinator at Shanks. The evidence did not demonstrate that the committee’s rationale was a pre-text for racial discrimination. Irene Ford held a Florida teaching certificate in elementary education. The evidence did not demonstrate the Batchelor’s degree she had attained in college. Ms. Ford began teaching in 1967 and had taught for about 36 years. She had retired from the Gadsden County school system in 2003. The committee, generally, scored Ms. Ford lower than either Petitioner or Ms. Galvin. Her qualifications are not at issue here. Michelle Taylor held a Florida teaching certificate in middle grade social studies. She held a bachelor’s degree in sociology and psychology and a Master’s degree in political science-public administration. She had been teaching since 1993 and had about 10 years’ experience as a teacher. Her qualifications are not at issue here. All the applicants were interviewed for the Site Coordinator positions by the committee. During the interview process, the applicants were all asked the same set of pre- established questions. There were no specific questions regarding student discipline. However, discipline was an important aspect of the position. One of the questions asked of applicants was to relate any additional strengths the applicant believed he or she had for the position. During her interview, Ms. Gates in listing her strengths, volunteered that she did not like to discipline students. Although this was not one of the interview questions, Ms. Gates’ statement was noted in the interview notes of three of the four committee members. Ms. Gates was never asked to qualify her statement nor to explain what she meant. At no time did Petitioner ever state during her interview or at any other time that she could “do everything except handle discipline,” as Mr. Riggins indicated in his affidavit to FCHR during its investigation of this matter. Mr. Riggins, the only interview committee member marking Ms. Galvin higher than Ms. Gates, did not write anything on his interview package about any discipline comments made by Ms. Gates. However, the comment was noted in his mind and brought up during the discussion following completion of all the scoring and interviews. After the interviews, the committee members independently scored each application. Petitioner received the following scores from each of the persons sitting on the interview committee: Committee Member Score Ann Taylor 33+ Maurine Daughan 18 Tammy McGriff Farlin 14.5+ Vann Riggins 16+ TOTAL SCORE 81.5 Carla Galvin received a lower overall score than Ms. Gates from the interview Committee. Ms. Galvin scored as follows: Committee Member Score Ann Taylor 25.5+ Maurine Daughan 14+ Tammy McGriff Farlin 11+ Vann Riggins 21+ TOTAL SCORE 71.5 Three of the four panelist scored Ms. Gates higher than Ms. Galvin. Mr. Riggins scored Ms. Galvin higher than Ms. Gates. Scores alone were not determinative of the committee’s ultimate recommendation of an applicant for a position. As indicated, the committee discusses each candidate and considers any other information or opinions of committee members regarding the applicants. At least two of the committee members had known Ms. Gates for many years, had worked with her and had a high regard for her abilities as a teacher and her dedication to improving at risk children. Mr. Riggins knew of both Ms. Gates and Ms. Galvin, but did not have any knowledge specific to either applicant other than he felt they were both good teachers. The other committee members were slightly more familiar with Ms. Galvin and recognized that she was a good teacher. As with Ms. Gates, they assumed Ms. Galvin could discipline students, since she had been teaching for a number of years and discipline is part of the job. During the group discussions of the applicants, Mr. Riggins raised concern about Ms. Gates’ statement that she did not like discipline. He noted that discipline was an important concern at all the Grant site locations since the Site Coordinator would be the only authority figure on location and would be responsible for handling any disciplinary problems that might arise. There would be no principal or backup administrator to help the Site Coordinator maintain discipline or handle a problem that might arise. Although vague and based more on intuition, Mr. Riggins felt that Ms. Galvin could “control the whole operation better” from a discipline standpoint. The evidence did not show that Mr. Riggins’ concern was a pre-text for racial discrimination. In this instance, committee members gave Mr. Riggins’ opinion about the ability of the candidates in fulfilling the duties of the Site Coordinator great weight since he was the director of the Grant program. The group reached a consensus that Ms. Galvin was the better candidate for the position and unanimously recommended her for the Shanks position. Out of five Site Coordinator positions to be filled, only one position was filled by a white applicant, Debby Thompson. However, this fact does not demonstrate that the committee members were motivated by race in recommending Ms. Gates for the Shanks position. Admittedly, Ms. Gates would seem to be the best candidate and the fact that she was not recommended for the Shanks position caused her to leave the Gadsden County School System and cost the School System an excellent teacher and mentor. However, the majority of the duties and responsibilities of the 21st Century Site Coordinator position did not involve being in the classroom and involved only occasional mentoring. The duties were mostly administrative and, since this was a new program, the director, Mr. Riggins, was the person most aware of the nature of the position which he would oversee. Mr. Riggins’ concerns over discipline were sufficient to overcome the higher score of at least two committee members and his regard for Ms. Gates. Deference by the racially-mixed committee to his concern over Ms. Gates’ ability to discipline was not unreasonable and not shown to be a pretext for racial discrimination. Therefore, the Petition For Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a Final Order finding that no unlawful employment practice occurred and dismissing the Petition For Relief. DONE AND ENTERED this 13th day of February, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Marie Mattox, Esquire Law Office of Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Deborah Stephens Minnis, Esquire Ausley & McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32302
The Issue Whether Respondent's teaching certificate should be suspended or revoked, or whether other appropriate action should be taken for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code.
Findings Of Fact The Respondent, Jimmy L. Parker, holds Florida Teaching Certificate #165142, Graduate, Rank 3, valid through June 30, 1901, covering the area of music education. Respondent has been employed in the public schools of Polk County at Winter Haven High School as the band director. A petition for the revocation of teaching certificate was filed by the Chairman of the Petitioner Council on April 6, 1979. Homer K. Addair, the Superintendent of Schools, by letter dated May 21, 1979, advised Respondent Parker that he was "charged with falsifying an accident report and subsequently wrongfully collecting workmen's compensation funds, i.e. immorality," and that he was suspended from his employment effective May 23, 1979. Respondent has not been employed since that date by the School Board of Polk County, Florida. Respondent Parker filed a response through his attorney on May 1, 1979, and the pleadings were filed with the Division of Administrative Hearings with a request that a hearing officer be assigned. After the hearing was called to order, a stipulation as to some facts was filed by the parties: On or about May 8, 1975, while returning home during the evening hours from a band meeting at the school and driving a 1975 Ford van leased to the Board of Public Instruction of Polk County, Florida, Respondent Parker pulled to the side of the road at a location approximately one house from his home at the signal of James A. Partain, an employee of the Board of Public Instruction of Polk County, Florida as a coach of Winter Haven High School. Partain got into the van with Respondent, wherein a discussion ensued concerning an illicit relationship occurring between Respondent and Partain's wife, also an employee of the Board of Public Instruction of Polk County. A fight ensued in the van wherein Respondent suffered physical injuries. Respondent Parker drove himself home and told his sick wife that two black people had beaten him at the school. Respondent's wife called a neighbor, who came to Respondent's home and called the police. Respondent told the police that two black boys had beaten him. On the morning of May 9, 1975, Respondent Parker reported to his supervisor, Principal Herman Lofton, that be was attacked by two youths while on the school grounds on official school business and beaten badly. The beating incident was investigated by the local police and later by William J. Duncan, Deputy Superintendent of Schools. On June 3, 1975, Respondent Parker submitted a "claim of instructional personnel for illness in line of duty compensation" form to the principal, Herman Lofton. This claim stated that Respondent was beaten while on official school business with the band on the school grounds by two youths. Ultimately, the claim was approved, and Respondent received workmen's compensation payments of approximately $3,400.00 as a result of said claim. The morning after the incident of the beating and the call to the police station, the headlines of an article in the Winter Haven newspaper noted that two black youths had beaten the band director, the Respondent, the night before. From that time to date of hearing there have been news items about the episode in the paper and on the radio. William J. Duncan, Deputy Superintendent of Schools, talked to the police chief about the fighting incident. He received telephone calls from the black community informing him that some black people did not believe black youths were involved and wanted the investigation to continue. There was controversy within the black group, some believing Respondent Parker had not told the truth and some believing he had. Later, a dispute arose between two school employees as a result of the incident which created a disturbance in the lunchroom. The incident was reported to Duncan. Subsequently, the investigation was dropped by the police and the school authorities for the good of the school and the community. Sometime later, however, Homer Addair, Superintendent of Schools, requested Duncan to make an investigation to determine whether students had been involved in the incident, whether the altercation had actually taken place on the school grounds, and whether records had been falsified. Duncan said that the investigation had been dropped to keep the peace between the black and the white communities and to further the interests of the school band. He had heard the incident mentioned occasionally from the time it occurred by people in the community, band members and Band Boosters, and read short reports about it in the newspapers. Herman Lofton, Principal of Winter Haven High School, had been called by the police and questioned about the incident. Shortly thereafter, he received a written report from Respondent. He signed a county form for instructional personnel for illness and received an employee's accident and report claim. Lofton processed the claim in due course by sending the form to the county office. Subsequently, Lofton talked to the two employees, one black and one white, who had been creating a disturbance in the lunchroom, about the incident. Lofton has heard others mention the incident from time to time and occasionally read a short account regarding it in the newspaper. Homer Addair, Superintendent of Schools, learned of the incident from the news media, from members of his staff, and from the community. He instructed Duncan, his deputy superintendent, to investigate. It was Addair's opinion that the Respondent is a good band director and is supported by the band students and Band Boosters, but that because of the altercation and falsification of records his effectiveness as a teacher in the school system as a whole has diminished. It is Addair's opinion that the conduct of Respondent Parker sets a bad example for the students. His opinion is based upon the conduct that led to the altercation and to Respondent's falsification of the workmen's compensation claim. James R. Partain, Coach at Winter Haven High School, substantiated the facts relating to the fighting incident but stated he did not want Respondent Parker to lose his job and was sorry for his involvement in the fight. He said the fight began after he threatened to tell Respondent's wife about the affair, and that Respondent threatened him if he did tell her. Partain did not realize he had beaten Respondent to such an extent and later apologized to him. James Ernest Reese, Assistant Band Director, stated that Respondent Parker is a hard-working and effective band director, and that it is his opinion that the altercation between the Respondent and Partain did not cause Respondent to lose his effectiveness as a teacher. When asked the question whether he felt "the receipt of money from the false claim as an act of morality for an educator, is that act a moral act or an immoral act?", he reluctantly stated, "I suppose it could be classified as an immoral act." Roy V. Wood, a retired supervisor of music in Polk County schools and an investigator for the Petitioner Council, testified that the people of Polk County knew of the altercation and of the allegations of falsified reports, and that they still wanted Respondent as a band director. Reverend D. Dewey Wise, Pastor of the First Church of the Nazarene, knew of the altercation and testified he could see no difference in the effectiveness of the Respondent as a teacher now as compared to before the subject problems. He testified that the majority of the people in the community support the Respondent. He also stated that falsification is not a good example and "anytime we commit wrong, it would be an immoral act." Respondent Parker stated that he lied to his wife and to the police about the beating incident, stating that two black youths had beaten him, because he did not want his wife to know that he had had an illicit affair with the wife of another teacher in the school system. Respondent stated that he also did not want to embarrass the school, and that he was afraid of his paramour's husband, Partain. There was no explanation from Respondent as to why he falsely stated the incident took place on the school grounds while he was on official school business, whereas in fact the incident took place only a short distance from his home and inside the school van. Respondent Parker filled out several forms after the first form for the workmen's compensation claim, and each time he made false statements as to whom he had been beaten by and where the incident had taken place. Respondent Parker has the reputation of being an excellent band director and has brought honor to the school through his talent in directing the school band. His employment evaluations have been good. The band students and the parents and friends who comprise the Band Boosters admire his ability. The band students and many people in the community would not like to lose his services in the music department. Both parties submitted proposed findings of fact, memoranda of law, and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the teaching certificate of the Respondent, Jimmy L. Parker, be revoked for a period of three (3) years. DONE and ORDERED this 8th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301 Lee S. Damsker, Esquire 2919 First Florida Tower Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: JIMMY L. PARKER DOAH CASE NO. 79-1026 /
The Issue Whether Petitioner, Manatee County School Board (School Board), established "“just cause”" in order to take disciplinary action against Respondent, Sharon Harrison (Ms. Harrison); and if so, what is the appropriate penalty.
Findings Of Fact Ms. Harrison has been a special education teacher in the School District since August 1992. She has a college education in the field of Special Education, and specialized training for teaching children with varying exceptionalities. The term varying exceptionalities means that a class is composed of students of varying disabilities. For example, a class may include students with autism combined with students who have a learning disability, speech delay, or physical impairment. Since 2007, Ms. Harrison has been a teacher for students with varying exceptionalities at Bashaw Elementary School. On August 15, 2011, Ms. Harrison began preparations for the new school year. Assigned to Ms. Harrison's class was a new teacher's aide, Ms. Stephan. Prior to August 2011, Ms. Stephan had never worked in a varying exceptionalities class. Ms. Stephan, however, has an interest in helping children with autism, and is currently earning her college degree in psychology with the hope of becoming a special education teacher. For the 2011-2012 school year, Ms. Harrison's class consisted of 12 students. Most of these students are children that she has taught for the past four years. One new student, however, was A.R. At the beginning of the 2011-2012 school year, A.R. was an eight-year-old girl with autism and behavioral issues. Based on her Individual Education Plan (IEP) team's discussion, A.R. was placed in Ms. Harrison's class. Unfortunately, because of her disabilities, it is undisputed that A.R. has difficulty with transitions. Consequently, A.R. could sometimes be non-compliant with directions. Furthermore, when A.R. became frustrated she had been known to become unpredictable, often screaming or yelling, throwing items, overturning desks, and becoming aggressive with other students. Moreover, because of her autism, A.R. would use verbal phrases inappropriately and out of context, such as "count to six" or "PBS kids." The testimony showed that A.R. had difficulty transitioning into Ms. Harrison's class. In the short period of time from the start of school on August 22, 2011, until the incident in question of August 30, 2011, Ms. Harrison and Ms. Stephan tried different methods to help A.R. with the transition. Sometimes, in order to encourage A.R. to be compliant, Ms. Harrison and Ms. Stephan would allow A.R. to draw butterflies, which A.R. enjoyed doing, or go for "happy walks" with Ms. Stephan outside the classroom. During these "happy walks," A.R. would burrow or nuzzle her head into the side of Ms. Stephan for comfort. Ms. Stephan developed an affinity for A.R, and Ms. Stephan would spend approximately 30 percent of the class time helping A.R. The events that give rise to this hearing occurred on August 30, 2011. The key factual question presented is whether or not Ms. Harrison had constant visual contact with A.R. once Ms. Harrison removed A.R. from the classroom for disruptive behavior. Resolution depends on the credibility of the only two witnesses who were present in the class on August 30, 2011, Ms. Harrison and Ms. Stephan. On August 30, 2011, Ms. Harrison was teaching a class about growing a plant from seeds. The students were first required to draw pictures showing the progression of a seed into a plant. After finishing the drawing, the students would then go to the horseshoe-shaped table for a hands-on lesson where the students would plant seeds in a bag. In the hands-on portion, each student would take turns writing his or her name on a clear ziplock bag with a permanent marker, then fill the bag with soil and a seed, and water the seed. On August 30, 2011, A.R. was having a "bad day," in that she was not compliant with the school work. As the class finished the drawing assignment, the other students joined Ms. Harrison at the horseshoe-shaped desk for the hands-on portion of the lesson. A.R. continued to work at her desk on the drawing with Ms. Stephan. When A.R. finished her drawing, she went to the horseshoe table and pushed herself in front of the other students. A.R. began screaming to get her bag, soil, and seed. Ms. Harrison told A.R. that she would have to wait her turn. A.R. continued to yell, and Ms. Stephan, in turn, got A.R. a bag, filled it with soil and wrote A.R.'s name on the bag. Initially, A.R. stopped yelling once she got her bag, until she saw one of the other students writing his or her name on the bag. A.R. began yelling and demanding that she be given the permanent marker. Again, Ms. Harrison told A.R. that she would have to wait her turn for the marker. Undeterred, A.R. began to scream loudly, demanding that she be given the marker. Ms. Harrison asked A.R. to calm down, but A.R.'s behavior continued to escalate. Ms. Harrison noticed that A.R.'s behavior was distracting her other students. Further, based on Ms. Harrison's past experience with teaching many of these same students, she thought that A.R.'s disruptive behavior might result in one of her other students acting out against A.R. Ms. Harrison determined that she needed to remove A.R. from the area, so she said something to the effect of "that's enough," took A.R. by the hand, and led her to the door on the opposite side of the classroom. Ms. Harrison directed Ms. Stephan to watch the other students. As Ms. Harrison walked to the door with A.R., A.R.'s behavior continued to escalate with her crying and screaming that she wanted the marker. With one hand holding A.R.'s hand, Ms. Harrison opened the classroom door. The door opened into an outside grassy area adjacent to the classroom. This area was described as containing a picnic table and was sometimes used by the class for different science activities. Photographs show that a short distance from this grassy area is a parking lot with a gated entrance, where school buses and vehicles would park. Further, the area is surrounded by a six-foot chain-link fence on the far side of the parking lot. At the time Ms. Harrison escorted A.R. from the class, at approximately 11:20 a.m., the gate was closed. Consequently, there was no danger of A.R. being injured by an incoming bus or vehicle. As Ms. Harrison opened the door with A.R. in tow, A.R. attempted to burrow or nuzzle her head into Ms. Harrison's side. Ms. Harrison found this behavior unacceptable because it was reinforcing A.R.’s behavior for acting out. Therefore, Ms. Harrison separated A.R. from her side. A.R. responded by trying to strike Ms. Harrison and continued her screaming tirade.1/ When A.R. attempted to strike Ms. Harrison, Ms. Harrison, with her hand, swung the door into a position between herself and A.R. Ms. Harrison, however, kept constant visual contact on A.R. with the door ajar. Ms. Harrison told A.R. repeatedly that she would have to calm down before being allowed back into the classroom. A.R.'s conduct continued to escalate with A.R. screaming, yelling, and hitting the door. Ms. Harrison did not lose sight of A.R. and was standing in A.R.'s immediate vicinity. Ms. Harrison credibly testified that she was never more that 12 inches from A.R. at the door. Further, Ms. Harrison was in a position to stop A.R. from running away from the immediate area outside of the classroom, had A.R. attempted to run away from the classroom. There was no testimony, however, that A.R. ever attempted to leave the immediate area outside of the door and Ms. Harrison's supervision. After a time period of approximately two to three minutes, A.R. calmed down sufficiently to return to the classroom with Ms. Harrison. Upon returning to the classroom, Ms. Harrison found that Ms. Stephan had completed the seed planting with the rest of the class. The students went to "Rainbow," which consists of special classes such as physical education, computers, or music. Ms. Harrison asked Ms. Stephan to accompany the class to Rainbow. Ms. Stephan's testimony and observation that Ms. Harrison had closed the door on A.R. was not credible, because the record contains facts showing her sight of the door was obscured and that her attention was diverted. Ms. Stephan's ability to observe A.R. and Ms. Harrison at the outside door was hindered by the fact that in the classroom she was in the opposite corner away from the door. The testimony showed that as Ms. Harrison escorted A.R. from the classroom, Ms. Stephan continued to help the other students in filling the bags with soil, seeds, and watering the seeds. The pictures from the classroom, taken that day, show the water faucet that was used to water the seeds was in the opposite corner of the room away from the door. In order to fill the bags with water, Ms. Stephan would have had to have her back to the door where Ms. Harrison and A.R. were located. The pictures, further, show that between this faucet and the door was an easel with paper on it, student desks, and a cubbie partially blocking the view. In addition to the physical obstacles, Ms. Stephan was helping the remaining 11 students with the seed planting. Ms. Stephan even testified that one boy complained that she had "drowned his seed" by putting too much water in his bag. Moreover, when Ms. Harrison returned with A.R., the seed planting lesson had been completed, and it was time for the students to go to Rainbow. Clearly, Ms. Stephan had helped the students finish the seed planting lesson while Ms. Harrison attempted to calm A.R. Although Ms. Stephan testified that she did not know if she had put water in the boy's bag before or after the incident with A.R., other facts show that Ms. Stephan filled the bag while the incident with A.R. was ongoing. It was undisputed that at the beginning of the seed planting, Ms. Stephan was helping A.R. with the drawing assignment. Immediately after finishing the drawing assignment, Ms. Stephan helped A.R. by obtaining a bag, writing A.R.'s name, and adding the soil. It is at this point that A.R. became upset when she saw other students using the marker. The testimony showed that Ms. Harrison removed A.R. from the class as A.R.'s behavior escalated, and that Ms. Stephan remained with the students. Similarly, Ms. Harrison testified that upon returning approximately two to three minutes later, the bags had been filled and watered. Consequently, the facts lead to the finding that Ms. Stephan helped finish the teaching lesson by filling the bags with water during the time that Ms. Harrison was trying to calm A.R. Therefore, Ms. Stephan was not in a position to see clearly the interaction between Ms. Harrison and A.R. In any event, on the issue of whether or not Ms. Harrison kept visual contact with A.R. in the time that A.R. was taken out of the classroom, the undersigned found Ms. Harrison's testimony credible and the basis for the factual finding, and did not find Ms. Stephan's description of the events credible. As Ms. Stephan walked the class to Rainbow, she saw another teacher's aide. Ms. Stephan informed the teacher's aide that Ms. Harrison placed A.R. outside the classroom, without supervision, and that A.R. had cried, yelled, and banged her head against the door pleading to be let into the classroom. This initial report eventually led to the School District's investigation, the subsequent temporary removal of Ms. Harrison from the class, and this disciplinary proceeding. Mr. Bennett, Bashaw Elementary School's Principal, testified he considered the allegation of Ms. Harrison's conduct serious because he believed that Ms. Harrison had placed A.R. in a dangerous situation.2/ Consequently, he had Ms. Harrison's personnel file examined and reported the incident to the School District. Mr. Bennett and Ms. Horne testified that Ms. Harrison had a prior disciplinary problem, and had entered a Memorandum of Conference, on March 25, 2008, concerning the expectations and directives in regard to students. Specifically, the Memorandum of Conference addressed "the teacher's observed inappropriate handling of students." Yet, the investigative report, introduced into evidence by the School Board, shows that the claim Ms. Harrison had used excessive force against a student was unfounded. The School Board failed to show that Ms. Harrison had been disciplined for using excessive force. In fact, the only discipline ever given to Ms. Harrison involved a seven-day suspension, without pay, for reporting to an IEP team meeting unprepared and allowing the student's IEP to lapse. The record further shows that A.R. was prone to repeating verbal phrases inappropriately and out of context. This characteristic of using verbal phrases in an inappropriate manner is consistent with A.R.'s disability of autism. Consequently, the undersigned found no significance to testimony showing that in the weeks after August 30, 2011, incident, A.R. would state "Ms. Stephan let me in " during school time. As Ms. Harrison credibly testified, A.R. would use the phrase "let me in" sometimes in the context of asking to join a group. Therefore, the claim that A.R. used the terms "let me in" as a result of being placed outside the classroom on August 30, 2011, is unfounded. Similarly, there was no competent evidence to support the allegation that A.R. attempted to run from classrooms through the backdoor based on the incident of August 30, 2011. Following the August 30, 2011, incident, Ms. Fazio, the School District's behavioral specialist, viewed A.R. in the classroom. Prior to the August 30, 2011, incident, A.R. did not have a behavioral plan in place. Further, since the August 30, 2011, incident, A.R.'s IEP team recommended that A.R. be moved from Ms. Harrison's class to a lower cognitive functioning class. A.R. was transferred to the lower cognitive functioning class, which her teacher Ms. Kennedy described as a "better fit" for A.R. Finally, the record showed that Ms. Harrison is a capable and respected varying exceptionalities teacher. Teachers and teacher aides, who testified, described her as firm with the students, well prepared, organized and patient with her students. There is no evidence that she was neglectful, aggressive, or mistreated her students. Furthermore, the testimony showed the lengths that Ms. Harrison would go to in order to keep visual supervision over her students. For example, When walking her students down a hallway, Ms. Harrison would routinely walk backwards, so that she could keep visual supervision on her students at all times. Consequently, there was no credible evidence that Ms. Harrison took any action that was harmful to A.R., her learning, or that impaired Ms. Harrison's effectiveness as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order dismissing the Administrative Complaint against Ms. Harrison, as not supported by the facts. DONE AND ENTERED this 28th day of June, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2012.
The Issue The issues are whether the conduct of the Respondent, an elementary school music teacher, justified a three-day suspension without pay on February 26, 27, and 28, 2008; and whether Respondent should be terminated from employment for conduct that constitutes misconduct in office, immorality, and/or incapacity.
Findings Of Fact James F. Notter, Superintendent of Schools of Broward County, Florida, signed the Administrative Complaint in this case on behalf of Petitioner, Broward County School Board (Petitioner or the Board). The Board operates public schools within the Broward County School District (the District). Respondent, Brian Duda, was employed as an elementary school teacher by Petitioner, Broward County School Board, and assigned to teach music at Sheridan Hills Elementary School during the 2007-2008 school year. Mr. Duda has taught school for a total of 29 years, 23 in Broward County. In addition to teaching music, Mr. Duda has been an elementary school classroom teacher. When Mr. Duda started at Sheridan Hills, in the 2004- 2005 school year, the principal was Christopher Pariso and the assistant principal was Deborah Freedman. Donald Fitz, who has been employed by the District since 1987, and for eight years before that in Pennsylvania, became the Sheridan Hills' principal in 2005, after Mr. Pariso retired. After Mr. Fitz was named principal, he received a letter from Mr. Duda saying he would not be returning to Sheridan Hills the following year. Mr. Fitz discussed Mr. Duda with Mr. Pariso who told him that Mr. Duda had served a one-day suspension related to anger management issues. When he did not receive a transfer to another school, Mr. Duda notified Mr. Fitz that he would, in fact, be returning to Sheridan Hills the following school year. Mr. Fitz and Ms. Freedman met with Mr. Duda and discussed his strength; he is an excellent music teacher; and his weakness, his need for anger management so that he is not "burning bridges." Mr. Duda was to seek help from Ms. Freedman when he felt the need for relief from his classroom or any other school setting to control his anger. The following year, Ms. Freedman left and Tara Zdanowicz became the assistant principal at Sheridan Hills. In a memorandum dated February 20, 2008, Mr. Duda was notified that the Board had approved Mr. Fitz' recommendation that he be suspended for three days. On April 11, 2009, Mr. Duda was notified, in the Administrative Complaint, that the Superintendent of Schools was recommending to the Board that his employment be terminated. In this proceeding, Mr. Duda challenged both actions. In the Amended Administrative Complaint, dated September 11, 2009, the disciplinary actions are, in relevant part, alleged to be justified based on the following: Specific Charges The Petitioner, James F. Notter, alleges as follows: Suspension Respondent, Brian Duda, humiliated and embarrassed a first grade student, W.J.R., in front of other students and parents at a school holiday show during the 2007-2008 school year. Specifically, W.J.R. arrived for the holiday show with his Mother, Grandmother, Grandfather, as well as his sisters, and approached Mr. Duda to take his place for the show. In the presence of others, Mr. Duda began to yell at W.J.R. causing him to cry at which time his family approached to see what was wrong. W.J.R.'s family then witnessed Mr. Duda continuing to yell at W.J.R. words to the effect that W.J.R. was banned from the holiday show and was supposed to have written in his journal and tell his parents that he was un-invited to the holiday show because he had acted despicable [sic]. Mr. Duda's actions embarrassed W.J.R. in front of his classmates and their parents. In this way, Mr. Duda violated his duty to protect students from conditions harmful to learning. W.J.R.'s mother took him and left the auditorium to prevent further humiliation and embarrassment to her son and family. Mr. Duda has been repeatedly counseled about his conduct with students, school personnel and parents and to conform his behavior, but he has failed to abide by these lesser disciplinary and counseling measures. Just cause exists for the requested relief as Mr. Duda's behavior is inexcusable under the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession, Rule 6B-1.006, Florida Administrative Code. WHEREFORE, based upon the foregoing, the Petitioner, James F. Notter, Superintendent of Schools, requests that the three (3) day suspension of the Respondent, Brian Duda, be upheld based upon the foregoing facts and legal authority. Termination Respondent, Brian Duda, creates and maintains a hostile, offensive and threatening environment for his colleagues as well as his students through his inappropriate conduct and behavior. Mr. Duda has been counseled repeatedly to correct his behavior but, he has disregarded such directives and continues his conduct undaunted. He disregards directives and continues a pattern of conduct that is demeaning and frightening to students and harassing and offensive to staff. Specifically, numerous colleagues, supervisors, students and parents complain that Mr. Duda makes offensive and harassing comments toward them. Mr. Duda's rude and hostile comments toward students would cause them to become visibly upset and create an environment which is not conducive to learning. Mr. Duda regularly exposes his students to ridicule and embarrassment. Mr. Duda's behavior prompted several student's [sic] parents to remove their children from Mr. Duda's class as a result of his actions. Examples [sic] of Mr. Duda's pattern of behavior is included herein. Mr. Duda made offensive comments mocking the death of a student's father asserting "That's what happens to white trash and he got what he deserved". Mr. Duda regularly exhibits rude and inappropriate behavior in class toward students. Mr. Duda told M.S. she was "bad just like your brother." When a student asked what "retarded" meant, Mr. Duda pointed to student S.R. and said she was "retarded". Michael Corva, S.R.'s teacher, found S.R. and several other students visibly upset after Mr. Duda's class as a result of such comments. Mr. Duda told B.O. to "shut up," and called A.G. "retarded" as well, simply because he didn't know the answer to a question. Additionally, Ms. Eaton witnessed Mr. Duda demean a fifth grade class by telling them that they should be in Pre-K or Kindergarten, or that they should be wearing diapers. Mr. Duda was rude and demeaning to student M.S., when she simply told him it was her birthday. He responded "Well, that doesn't make you special. Sit down." Mr. Duda further demeaned her by then ordering her to sit alone in the back of the classroom. At the end of class, M.S. was discovered by another teacher sitting alone in the back of the room with her jacket over her head. M.S.'s parents subsequently demanded their child be removed from Mr. Duda's class. Mr. Duda threatened Tara Zdanowicz, Assistant Principal, upon being denied a letter of recommendation by responding "Okay, well if I'm here next year, things aren't going to be good. This is going on my list of things. I better not run into Mr. Fitz in Wilton Manors with my friends." Staff has further witnessed inappropriate interactions with Mr. Duda concerning his conduct, anger management and verbal statements which cause concern for the welfare of the staff and students. For example, Mr. Duda told staff that his friends had "heard enough and . . . if they ever saw Mr. Fitz out they'd kick his ass". Mr. Fitz is the school Principal. Mr. Duda further embarrassed, humiliated, and demeaned a parent volunteer by telling her "Why don't you go get a job at Publix? At least they pay you there," while she was volunteering in another class. This parent subsequently removed her child, C.F., from Mr. Duda's class because Mr. Duda would be offensive to her, and she did not want her child exposed to this type of conduct at a crucial age. Mr. Duda's actions further made the student C.F. so frightened and uncomfortable that when Mr. Duda would walk into the library, C.F. would try to avoid an encounter with him by hiding. Mr. Duda embarrassed and humiliated Steven Briggs, a seven year employee of the School Board, and Mary Harris, office manager and confidential secretary to the Principal of Sheridan Hills, by yelling at them prior to the start of the Christmas/holiday show saying "you people in the back. You adults. I don't want to hear anything out of you either." This comment drew the attention of everyone in the cafeteria whereby Mr. Briggs and Ms. Harris left and did not watch the show. Similarly, Mr. Duda yelled at and demeaned a teacher arriving with the class for a school show by yelling in front of the whole school that "You are supposed to be here at 9:00. It is 9:02. I should not let you come to this concert." Mr. Duda caused a coworker, Kathleen Treado, a twenty year employee, to cry upon yelling and berating her for inquiring as to what was wrong when she heard Mr. Duda yelling at the library clerk. Mr. Duda yelled to Ms. Treado "It's none of your business Kate Treado." Mr. Duda further humiliated and demeaned Ms. Eaton by stating, "You're off today. You're not taking your pills." Similarly, Mr. Duda stated to staff that Mrs. Fletcher, president of the Parent Teacher Association (PTA), " . . . is nothing but trailer trash, and so is Debbie Corriveau". Mr. Duda also told staff that other staff and parent volunteers at Sheridan Hills, were "white trailer trash". Mr. Duda has also harassed Mabel Gutierrez-Sangal, a fifteen year paraprofessional at Sheridan Hills, with continuous comments to her about her clothes being inappropriate. Mr. Duda also threatened to kick her out of his class if she attempted to enter his classroom. Ms. Sangal felt threatened and uncomfortable and reported the incident to the Principal Donald Fitz. Mr. Duda further demeaned pre- k students, in front of Ms. Sangal, during lunch by stating "Okay little ones, Please eat your government lunch biscuit" while adding that they should not let Ms. Sangal eat their pizza. Mr. Duda was hostile and threatening toward Ms. Corriveau, by approaching her and sticking his finger an inch from her face and accusing her class of being loud. Rhonda Lane, an eleven year employee, witnessed this "highly inappropriate" interaction. The School Board has taken lesser corrective measures by repeated counseling of Mr. Duda to correct and conform his behavior but he has failed to abide by such counseling and lesser disciplinary measures. The conduct described, the Amended Administrative Complaint concluded, constitutes, in Count I, Misconduct in Office; Count II, Immorality; and Count III, Incapacity. Collective Bargaining Agreement (CBA) Record-keeping requirements and procedures for handling complaints against employees of the District are governed by a CBA negotiated between the Board and the Broward Teacher's Union (the Union). The CBA, in relevant part, provides: E. Personnel File- Access and Security Number of files: There shall be no more than two (2) personnel files maintained for each employee. The official file will be maintained at the district personnel office. In the event two (2) such files are maintained, one (1) shall be kept in the principal's or director's office at the school or other location where the employee is then employed. Each document placed into the employee's file maintained in the principal's or director's office shall be duplicated and the original transmitted to the district Personnel Office for inclusion within the employee's file maintained at the district Personnel Office . . . . Entries log: Each personnel file shall contain a form titled "Log of Entries" to include all of the following information regarding certificates, commendations, assessment documents, disciplinary matter and complaints placed in the files: (1) a brief description of the time; (2) the date shown on the item; (3) the date the item was first placed in the file; and (4) the identification of the source of the item. * * * Investigative File: The file established by the district as a result of any investigation of an employee is not one of the two personnel files listed above. Access to a file dealing with an investigation shall be in accordance with the provisions of Florida Statute 1012.31. If the preliminary investigation is concluded with . . . no disciplinary action taken or charges filed, then the district will ask the Department of State . . . for permission to destroy the . . . file. Notification to employee: Items may not be placed in an employee's official personnel file unless the item has been made known to the employee, pursuant to the methodology described in Florida Statute 1012.3l(2)(c) . . . CBA, Article 18(E)(1), (2), (4), and (5). The CBA also provides for handling complaints as follows: Complaints on Employees: No action against an employee shall be taken on the basis of a complaint by a parent or student or other individual nor any notice of such action or complaint shall be included in the employee's personnel file, unless the matter is first reported to the employee in writing and the employee has had the opportunity to discuss the matter with his/her principal. CBA, Article 18(B)(2). At various times during the school year when teachers, parents, and students complained about Mr. Duda, Mr. Fitz would have them put their complaints in writing. He did not provide copies of the complaints to Mr. Duda but maintained them in a correspondence file. Respondent's position is that the "correspondence file" was a separate third "personnel file" maintained in violation of the terms of the CBA, and that, as a consequence, no disciplinary action may be taken against Mr. Duda. That position ignores Article 18(E)(4) of the CBA that allows information to be collected in an investigative file. Respondent also maintains that Mr. Fritz should have given him copies of the written complaints that he was collecting. Diane Watts, the field representative for the union who was assigned to assist Mr. Duda, agreed with Mr. Duda that employees should be notified of complaints immediately, although the CBA has no specific time limit. Ms. Watts confirmed that an employee does not have to be given copies of written complaints. According to the requirements of the CBA, a principal or supervisor who gets a complaint about an employee should not put the complaint in the personnel file, but should keep it separate and forward it with a request for an investigation to the District's Special Investigative Unit (SIU). It is the SIU that notifies the employee in writing of the complaint and conducts the investigation, but the SIU is also not required to give the employee copies of the actual complaints or any written or recorded statements taken during the course of the investigation. With a union representative present, the employee has an opportunity to give his or her own statement. At the conclusion of an SIU investigation, a written report summarizing allegations and statements must be provided to the employee, but again not the written complaints. The employee, with a union representative, has another opportunity to appear, this time before the Professional Standards Committee. If further action is recommended, a pre-disciplinary conference allows the employee, with a union representative, to have additional input. Mr. Duda had both a union representative and an attorney present at a pre-disciplinary conference. As confirmed, the CBA procedures were followed in Mr. Duda's case. She accompanied him throughout the process and never filed a grievance concerning the manner in which the matters were conducted. Ms. Watts confirmed that it would have been a violation of the terms of the CBA if Mr. Fitz had placed complaints in Mr. Duda's personnel file before and during the investigation. She said the SIU process unfortunately can take an "awfully long time" meaning up to "over a year." In this case, Mr. Duda was removed from a teaching position and reassigned to a District office in August 2008, but the first Administrative Complaint to terminate his employment was not filed until April 2009. There is only one exception to the requirement that complaints not be placed in the personnel file until the investigation has been completed: that is for minor matters that a principal may resolve internally with a letter of reprimand. In each instance of discipline at issue here, Mr. Duda was notified in writing of the recommendations and reasons given to the Board by Mr. Fitz, who recommended suspension, and subsequently by the Superintendent, who recommended termination. There was no violation of the CBA in the procedures to impose discipline. Therefore, the CBA does not prohibit further consideration of the allegations in the Amended Administrative Complaint, based on the provisions related to personnel files and written notice. The additional requirement of an opportunity to discuss the matter with his principal was also met based, in large part, on the testimony of Mr. Duda himself. See, for example, Findings of Fact 24, 32, 43, 45, 49, and 50. Mr. Fitz also kept an Entry Log in Mr. Duda's personnel file that Mr. Duda conceded was correct. Mr. Fitz gave Mr. Duda "satisfactory" ratings on the Instructional Personnel Assessment System (IPAS) at the same time he was collecting complaints to refer to the SIU. He was instructed by Cathy Kirk, the District's Evaluation Coordinator, and Loreen Calhoun, of Employee Relations, not to address possible disciplinary issues in the IPAS, although he did write a comment about the need for anger management on one IPAS. Amended Administrative Complaint Paragraph II.A.a. On December 6, 2007, W.J.R. was a first grade student at Sheridan Hills. Based on his description of W.J.R.'s behavior earlier in the day as "despicable," Mr. Duda apparently told a substitute teacher for W.J.R.'s class to write in his agenda/planner for his parents to see that he was being excluded from the holiday show that night. All parties agree that W.J.R. was humiliated, embarrassed and in tears. He had been excited that he was going to be in the holiday show, got all dressed up, and was accompanied by his mother, grandparents, and sisters. As they entered the music room, Mr. Duda yelled from the back of the room that W.J.R. should not be there. Mr. Duda testified that that the grandmother called him a "jackass." W.J.R.'s parents and grandparents found Mr. Fitz and complained about Mr. Duda, and then left the school before the program. Mr. Fitz was concerned because Mr. Duda was "in one of those moods [and had previously] declined to follow through with the [spring] concert and . . . I had to get someone outside of our school to carry through for the rest of the spring concert rehearsal." To calm things down, Mr. Fitz asked the parent to come see him the next day. He also called Ms. Zdanovicz, the assistant principal, who was on her way to the school, to ask her to get there quickly to help calm Mr. Duda because she had a better relationship with him. The following day Mr. Fitz met with the family of W.J.R. and received a written statement from his mother. Mr. Fitz also met with Mr. Duda concerning the incident. Mr. Duda testified unconvincingly that Mr. Fitz only discussed the incident by "briefly ask[ing] what happened . . . ." With Ms. Watts, Mr. Duda attended a pre-disciplinary conference on January 25, 2008. Eight-year-old W.J.R. was "sad" when "[Mr. Duda] yelled at me and said I was not supposed to be there." Christopher Falzone, the after school program director, who was there to help with the concert, confirmed that Mr. Duda was eye-level with the child, as Mr. Duda said, but that he was very loud and angry. He was pounding his fists, and causing a scene in front of other children and parents. In a memorandum dated January 31, 2008, Mr. Fitz notified Mr. Duda that he was recommending his suspension for three days without pay because: ". . . you lost your temper in front of students and parents while exhibiting conduct unbecoming a teacher. This is in violation of the Florida State Department of Education's Code of Ethics Rule 6B-1.001(2) that states, 'The Educator's primary concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.'" Mr. Fitz found that Mr. Duda's conduct violated Florida Administrative Code Rule 6B-1.006(3)(c), which states "[an] [o]bligation to the student requires that the individual shall not intentionally expose a student to unnecessary embarrassment or disparagement." The memorandum also advised Mr. Duda of his right to file a grievance and to schedule an informal discussion with a union representative present within 15 working days of the date of the memorandum. No grievance was filed and the Board approved the recommendation for suspension and provided written notice of that decision to Mr. Duda on February 20, 2008. Based on Mr. Duda's behavior at the hearing, Mr. Fitz is credible in saying that Mr. Duda laughed and said that "his mother was going to make up the difference in pay" for the three days. The fact that Mr. Duda did not take seriously the inappropriateness of the manner in which he handled the incident with a first-grade child was reinforced by his insistence, at hearing, that he had the authority to exclude anyone he wished from the program. The factual allegations in Paragraph II.A.a. of the Amended Administrative Complaint are proven. Amended Administrative Complaint Paragraph II.B.b. Lynn Eaton, a pool substitute teacher at Sheridan Hills, was sorry to hear that a father of three, including two who were students at Sheridan Hills, was killed in a boating accident. It was reported all over the news that the accident was alcohol-related. Mr. Duda said, "Oh, did you hear what happened to Mr. [B] drinking and being drunk and getting killed in a boating accident . . . That is what happens to white trash when they drink and drive a boat." After attending the funeral, thinking about the comment over the weekend, and still being upset about it, Ms. Eaton reported the comment to Mr. Fitz and put her complaint in writing. Mr. Duda testified that what he said was, "Thank God he did not get behind the wheel and kill an innocent person on the road." He denied calling Mr. [B] "white trash" or saying "he got what he deserved." Mr. Duda's testimony that he did not use the expression "white trash" is not credible due to evidence of other incidents when he reportedly used a similar expression about a PTO volunteer and another teacher. Giving him the benefit of the doubt and referring to Ms. Eaton's written statement, at the time of the incident, quoting Mr Duda, he said "that is what happens to white trash but he felt very sorry for the children." There is inadequate evidence to support a finding that he also said "he got what he deserved." Mr. Duda conceded that he was confronted about the incident, when he said he and Ms. Eaton did not speak to each other for some time after that. The factual allegations in Paragraph II.B.b. are proven, in part. Amended Administrative Complaint Paragraph II.B.c. and II.B.d. Mr. Duda acknowledged that he told student M.S. that she was "bad just like her brother" in front of her classmates. He berated M.S. for having a birthday crown or hat on her head. Saying she was not special, he made her take it off. Mr. Duda said he was adhering to the school policy of no hats and believes that "floppy things" on the hat interfered with her music lesson, although what he interpreted as the strict no-hat rule is waived for birthdays and some children do wear Burger King cardboard crowns on their birthdays. When M.S.'s teacher came to get the class from music, M.S. was sitting in the back of the classroom crying with a hooded jacket over her head. Her mother said M.S. told her she felt uncomfortable with Mr. Duda and, as a result, she had M.S., a straight-A, gifted student, removed from music class. Mr. Duda pointed at student S.R. and said, "speaking of retarded." K.M., another student in the class, heard Mr. Duda call S.R. "retarded" or "stupid" in the course of teaching a class about a musical term. Her testimony is consistent with that of S.R. and Mr. Duda that he was teaching about the musical term ritardando, which means to slow the tempo of music. He compared slow tempo to a slow mind, but denied that he made any reference to or stared at S.R. or any other student. Mr. Duda's demeanor at the hearing lends credence to the students' testimony. The testimony of S.R. and K.M. was confirmed by that of S.R.'s classroom teacher, Michael Corva. S.R. and other students in his class informed him that Mr. Duda called S.R. "retard." He also saw that she obviously was upset when he picked up his class from music. The students told him that Mr. Duda was "mean" to them. Saying that she did not want to get anyone in trouble, specifically not Mr. Duda, S.R. would not go to the office to report the incident, but Mr. Corva did in a written statement he gave to Mr. Fitz. Student A.G. also was upset when Mr. Corva picked up his class. A.G. testified that Mr. Duda was explaining something like "retardo" and called some of the students retarded, including himself and S.R. The evidence supports a conclusion that Mr. Duda, at a minimum, implied that S.R. and A.G. were retarded by the way he pointed or looked at them while teaching a lesson on the musical term ritardando. No evidence was presented concerning the allegation in Paragraph II.B.c. that Mr. Duda told student B.O. to "shut up." Ms. Eaton overheard Mr. Duda tell students that they should be in diapers. Mr. Duda denied ever telling students they belonged in diapers. Of the two, Ms. Eaton was by far the more credible witness. With the exception of the allegations related to student B.O., the allegations of Paragraph II.B.c. and d. have been proven. Amended Administrative Complaint Paragraph II.A.b. and II.B.a., e., and j. After she came to Sheridan Hills in Mr. Fitz's second year as principal, Assistant Principal Zdanovicz was the person who, like Ms. Freedman before her, was assigned to help Mr. Duda by relieving him whenever he felt he was losing his temper. As Mr. Fitz counseled Mr. Duda repeatedly and, especially, after his three-day suspension, Mr. Duda refused to talk to Mr. Fitz and would only deal with Ms. Zdanovicz, although she made it clear to him that she was reporting their conversations to Mr. Fitz. In June 2008, Mr. Duda was seeking a transfer to another school. He asked Ms. Zdanovicz to write a letter of recommendation for him. When she refused the request, Mr. Duda became agitated and started "ranting and raving" in an open area of the front office. In one conversation that she had with Mr. Duda, Ms. Zdanovicz was concerned that he was making a threat on the life of Mr. Fitz. In his testimony, Mr. Duda confirmed that, referring to himself and his friends, he told Ms. Zdanovicz, "If we ever see that son of a bitch out in Wilton Manors, we would kick his fucking ass." Ms. Zdanovicz took it seriously, in part, because Mr. Fitz lives in Wilton Manors. Explaining why his friends were involved, Mr. Duda said it was because they heard him complain regularly about the way Mr. Fitz treated him. It is implausible, therefore, to conclude that, as Mr. Duda testified, he was not being advised regularly by his principal of complaints about his behavior. Ms. Zandovicz testified, "Whatever the outcome of this I do fear for myself and Mr. Fitz and the other people at our school. The allegations in Paragraph II.A.b. and II.B a., e., and j. have been proven. Amended Administrative Complaint Paragraph II.B.a. and f. Mr. Duda told G.F., a PTO parent volunteer, "Go get a job at Publix. At least they pay you there." When her child, C.F., was in third grade, C.F. began to complain of feeling ill on the days for music classes. When confronted by her mother, C.F. told her that Mr. Duda was mean to her and made her feel uncomfortable. At her mother's request, C.F. was taken out of music class. Kate Treado, the Sheridan Hills media specialist, reported that C.F. needed to be reassured about her safety after she noticed her hiding behind the stacks whenever Mr. Duda came in the media center. Mr. Duda acknowledged making the comment about Publix, but said he was joking with G.F. and had no ill intent. Mrs. F. said she was offended but tried not to be confrontational. Claiming that he and Mrs. F. were friends and that he did not know why C.F. was removed from music class, Mr. Duda testified that he approached Mrs. F. and asked "what happened," and she said she did not want to talk to him. In response to accusations from M.S. and C.F. that he glared at them or otherwise intimidated them after they were removed from his class, Mr. Duda said, "No. There had been enough trouble when they were removed from my class. I have 623 other kids to worry about. If they don't want to be in music, fine." At another time, he conceded that he knew their removal from his class reflected negatively on him. When asked, on cross-examination, "What trouble had there been relating to their removal?," Mr. Duda said, "I don't know what you are referring to. I don't recall saying that." Another parent, D.L.R., asked to have her son, D.B., removed from music class. D.B. accused Mr. Duda of grabbing his shirt. After Mr. Fitz randomly chose children in the class to interview, he concluded there was no evidence to support D.B.'s claim and he told Mr. Duda, "[D]on't take it any further." In direct violation of that directive, Mr. Duda said D.B. came in with hoodie over his head, and he "professionally would not let a kid sit there curled up like that, afraid to look at me." So, he said "[D.B.], I'm not upset with you. I'm just disappointed." D.B. said "[Well, you did it." Mr. Duda responded, "Oh, Oh, we are not going there." He asked which children had been interviewed, and gave them rewards called "flip-its" for "telling the truth." Mr. Duda admits being advised that Mr. Fitz considered his behavior unacceptable, saying he "chewed" him out. The allegations in Paragraphs II.B.a., d., and f. have been proven. Amended Administrative Complaint Paragraph II.B.g. Mr. Duda made comments in a cafetorium filled with children and parents attending one of the holiday programs, to chastise teachers in the back for having a "teacher conference going on." He was speaking to Steven Briggs and Mary Harris who complained that the comments were directed at them. Mr. Duda claimed to be joking with and looking only at Debbie Corriveau. Mr. Briggs' testimony that Mr. Duda directed the comment to him and Ms. Harris is supported by a contemporaneously written statement dated 12/7/07. Mr. Briggs also observed and reported that Mr. Duda chastised one teacher, in front of the entire assembly, for bringing her class in at 9:02 a.m. instead of 9:00 a.m, saying he should not let them attend. Media specialist, Kate Treado, confirmed that Mr. Duda got very tense about the time for performances, including often threatening to exclude children from performing, and once telling children and parents who had gathered early in the media center that they could not attend a performance that evening. Mr. Duda attributed this action to his concern for overcrowding. The allegations in Paragraph II.B.g. of the Amended Administrative Complaint have been proven. Amended Administrative Complaint Paragraph II.B.h In September 2007, Cheryl Fogarty, a media clerk at Sheridan Hills, was verbally and loudly criticized by Mr. Duda for leaving bubbles in his laminating project and was in tears by the time he left the media center. Ms. Treado heard what was happening, walked in and said "good morning" to Mr. Duda. Although the media clerk works under Ms. Treado's supervision, Mr. Duda told her what was going on with Ms. Fogarty was none of her business. On another occasion, Mr. Duda became angry with Ms. Fogarty because he thought she was taking laminating projects out of order and that he reported that to the assistant principal. He said his work was on top at 7:00 a.m., but he saw other work on top of his at 7:30 a.m. Mr. Duda agreed referred to Ms. Eaton regularly for years as a "lovable crazy old bat," sometimes asked if she took her medication or had "silly pills", and laughed at her silly clothes, but Ms. Eaton was not offended and said she did wear silly outfits to entertain the children. After she made the complaint about his comments regarding the death of the parent, Mr. B., however, their joking relationship ended and they stopped speaking for a while. After school program director, Christopher Falzone, testified that Mr. Duda referred to another teacher and a parent as "white trash." Mr. Duda denied that he made the comments, but Mr. Falzone and Ms. Eaton are more credible with independent memories of Mr. Duda's having used the same expression on separate occasions. Based on the evidence, it is found that the allegations in Paragraph II.B.h. are proven. Amended Administrative Complaint Paragraph II.B.i. There is no evidence to support the allegations concerning Mabel Gutierrez-Sangal. Mr. Duda testified that he was upset that Ms. Corriveau's class was, in his opinion, too loud and that the noise was disturbing another teacher's class where he was helping proctor the FCAT administered in March 2008. Mr. Duda spoke to Ms. Corriveau about it and, because he thought she was being sarcastic when she said, "okay, Mr. Duda, okay," he turned back towards her to say it was not a joking matter and to chastise her further. Mr. Duda was rude, inappropriate, and he spoke to her as if he were reprimanding a bad child. After the incident, Ms. Corriveau told Mr. Duda she had never been spoken to that way in her life and avoided him. Summary of Findings: The terms of the CBA were not violated in the procedures that led to either the three-day suspension or he proposed termination of Mr. Duda. Disciplinary actions, if otherwise appropriate, are not barred by the terms of the C.B.A. The factual allegations in Paragraphs II.A.a. and II.A.b. of the Amended Administrative Complaint, in support of the suspension, have been proven. The factual allegations in Amended Administrative Complaint Paragraphs II.B.a., b. (in part), c. (in substantial part), d., e. (in substantial part), f., g., i. (in part), and j. have been proven.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board issue a final order upholding Respondent's suspension and terminating his employment with the School Board. DONE AND ENTERED this 15th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2009. COPIES FURNISHED: Carmen M. Rodriguez, Esquire Carmen Rodriguez, P.A. 15715 South Dixie Highway, Suite 411 Palmetto Bay, Florida 33157-1884 Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 James F. Notter, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale 33301-3125 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner is entitled to damages and back salary for the period of April 22, 2004, through May 31, 2006, pursuant to Subsection 1012.33(3)(g), Florida Statutes (2007), as well as interest and attorney's fees.
Findings Of Fact Petitioner, Charles V. Keene, has been employed by Respondent, the School Board of Escambia County, as a full-time Florida-certified public school teacher since April 22, 2004, under a series of annual contracts. Prior to his employment with Respondent, Petitioner was a full-time public school teacher in Alabama for 20 years and received satisfactory performance evaluations throughout the 20 years. At the time he was hired by Respondent, commencing April 22, 2004, Petitioner received credit for salary schedule placement for the one year he had previously taught in Florida, and for the two years he had taught in Georgia. He requested, but did not receive, credit for the 20 years of instructional service in the state of Alabama that he utilized to obtain his retirement in Alabama. Respondent operates under a collective bargaining agreement known as the "Master Contract." The Master Contract includes, among other things, a salary schedule that is the result of negotiations with the Escambia Educational Association ("EEA"), the collective bargaining agent that represents teachers. The negotiated salary schedule is then recommended by the Superintendent of Escambia County Schools pursuant to Subsection 1012.27(2), Florida Statutes, to Respondent for approval and adoption. The salary schedule adopted by Respondent governs the compensation payable to instructional personnel. The salary schedule includes "steps" with corresponding "salary." Placement on the salary schedule step depends, in part upon prior teaching experience. Generally, more prior teaching experience credited for placement on the schedule results in a higher level of compensation. At the time of Petitioner's hire on April 22, 2004, the Master Contract in place was the contract for the period of 1999-2002, extended by agreement of Respondent and the EEA until July 21, 2004. According to the Master Contract in effect on Petitioner's date of hire, limitations were placed on the amount of prior teaching experience that could be used for determining placement on the salary schedule. For example, credit for prior teaching, military, governmental, or employment service, not including Florida public school teaching experience, was limited to a maximum of fifteen years. The Master Contract also contained a specific provision for placement of retired educators. The contract provided as follows: II.5(C) Placement for Retired Educators Educators who retired from Escambia District Schools and who return to full time employment in Escambia District Schools shall be placed on Step 5 of Appendix A- Instructional Salary Schedule. Educators who retired from any other school district shall be placed on Step 0 of Appendix A-Instructional Salary Schedule. The effect of this provision was that Petitioner received no credit for the 20 years of Alabama teaching when placed on the salary schedule. Employees' rights for placement on the salary schedule are determined by the date of hire. With credit being given for prior teaching experience in Florida and Georgia, but without credit for 20 years of teaching experience in Alabama, Petitioner was placed on the salary schedule in accordance with the provisions of the Master Contract in effect at the time of his hire. Petitioner received annual instruction contracts under the authority of Section 231.36(2), Florida Statutes (later renumbered Section 1012.33(3), Florida Statutes). Petitioner's annual instructional contracts set forth the contract salary on an annual basis payable through twelve monthly installments. The contract specified the number of days to be worked and the daily rate of compensation. Respondent's standard form contract provides that "[t]his annual contract shall be deemed amended to comply with all laws, all lawful rules of the State Board of Education, all lawful rules and actions of the School Board and all terms of an applicable ratified collective-bargaining agreement." Respondent, as a matter of practice, provides newly hired teachers with information on how they are placed on the salary schedule. Additionally, Respondent's website has information available with a link to the Master Contract language which demonstrates how instructors are placed on the salary schedule. Human Resources staff members are instructed that the Master Plan governs placement of newly hired instructors on the salary schedule, and they advise the newly hired instructors of placement on the salary schedule. At the time of his hire, Petitioner was told he would not be credited on the salary schedule for his Alabama teaching experience which led to his retirement in that state after 20 years. Petitioner acknowledged that he received a copy of the Master Contract in August of 2004, when the school year started. Petitioner knew, at the time of hire, that his rate of pay was based on his placement on the salary schedule. Petitioner had agreed at that time to perform the services required by his contract based upon the compensation set forth in the contract. Petitioner inquired about receiving credit for his 20 years of teaching experience in Alabama at the time he was hired by Respondent. At that time, Petitioner was told by Judy Fung, an employee with Respondent's human resources office, that Petitioner would not be granted credit for his 20 years of teaching experience in Alabama. Petitioner provided Respondent, shortly after he was hired, all the necessary paperwork to document his 20 years of satisfactory service as a teacher in Alabama. Petitioner performed the agreed-upon instructional services and was paid the agreed-upon contractual amount. Petitioner's annual instructional contract specifies the salary paid through twelve monthly installments with a daily rate of compensation identified. The amount of compensation can be further broken down into an hourly rate based upon 7.5 hours per day, and provides for annual leave and sick leave. As is customary, if the employee takes leave and has no accrued leave balance, his pay will be reduced to compensate for the hours of leave without pay taken. Respondent maintains ledgers with all the compensation information for its employees, including Petitioner. The statutory provision governing credit for prior teaching experience at issue in this hearing is former Subsection 231.36(3)(g), renumbered through amended versions to Subsection 1012.33(3)(g), Florida Statutes. Although the statute has been amended several times since 2001, the language that applies to all instructional employees (which includes public school classroom teachers pursuant to Subsection 1012.01(2)(a), Florida Statutes) hired after June 30, 2001, remains the same: "[F]or purposes of pay, a school board must recognize and accept each year of full-time public school teaching service earned in the state of Florida or outside the state." The original version of the statute effective July 1, 2001, included language that this statutory provision "is not intended to interfere with the operation of a collective bargaining agreement except to the extent it requires the agreement to treat years of teaching experience outside the district the same as years of teaching experience within the district." § 231.35(3)(g), Fla. Stat. (2001). The statute was amended effective January 7, 2003, removing the reference to collective bargaining and clarifying that the statutory provision applied only to public school teachers. § 1012.33(3)(g), Fla. Stat. (2003). The Master Contract was amended effective July 22, 2004, to include language referencing Subsection 1012.33(3)(g), Florida Statutes. The changes to the Master Contract, however, applied only to those instructors hired after July 22, 2004. Petitioner, and certain other teachers hired after June 30, 2001, but before July 22, 2004, have requested their placement on the salary schedule be revised to include credit for previous years of teaching experience. Those requesting a revised placement on the salary schedule based upon uncredited experience include teachers who had previously retired utilizing that credit and some who had not retired. Respondent, uncertain as to the proper application of the statute, has addressed claims for placement on the salary schedule and/or past compensation on a case-by-case basis. In February 2006, Petitioner became aware that Respondent's position concerning his requested credit for 20 years of teaching experience in Alabama may have been incorrect. Petitioner made a request for retroactive credit and for back salary for his 20 years of teaching experience in Alabama in June 2006, and again provided Respondent with documentation of his Alabama satisfactory teaching experience. Petitioner's request for credit and back salary was refused. The only reason given to him at the time was that he failed to make his request within two years of his hire date. At the direction of its General Counsel and after approval by the School Board, Respondent's placement on the salary schedule was amended effective June 1, 2006, to allow credit for his 20 years of teaching experience in Alabama. Respondent's human resources department does not know why the retroactive credit and salary increase were allowed for Petitioner, nor why the date of June 1, 2006, was chosen, especially when the collective bargaining agreement, according to Respondent, does not allow such credit. Petitioner seeks from Respondent 20 years of service credit and back salary for his satisfactory Alabama teaching experience for the period of April 22, 2004, through May 31, 2006, in the amount of $39,209.50. Petitioner also seeks reimbursement of reasonable attorney's fees, costs, and interest, both pre- and post- judgment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board enter a final order denying Petitioner's claim for back salary in the amount of $39,209.50, as well as pre- and post-judgment interest on this amount, and attorney's fees and costs. DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2007. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Michael J. Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
